Volume 75 — Tennessee Reports

<p>1. Certificate of Stock. Assignment. An assignment for value, in due course of trade, of a certificate of stock in a corporation, with a blank power of attorney to transfer the stock on the hooks of the company, passes the whole title, legal and equitable.</p> <p>2. Same. Same. Collateral security. If the pledgee, as coll ateral security, oí a certificate of stock so assigned, sub-pledges the certificate for money loaned to him in ignorance of the owner’s equity, the sub-pledgee will be entitled to hold the stock, as against the owner, to the extent of the consideration.</p> <p>3. Same. Collateral security for money borrowed. Due course of trade. Where -a note is given for money borrowed at the time, secured by stocks pledged as collateral, and the note is renewed at maturity, upon an extension of time, and the new note secured by a pledge of the same or other stocks, assigned with power of attorney to transfer, the pledgee, who receives them without notice of any outstanding equity, takes them in due course of trade, free from such equity.</p> <p>4. Same. Collaterals. Purchaser for value. If the holder of a note secured by stocks as collaterals, after the contract has been closed, exchange any of the collaterals witli'the maker of the note for other stocks of equal value, he would take the latter as security for a pre-existing debt, but would be a purchaser of them to the extent of the consideration given in exchange.</p> <p>5. Same. Stockholder. Pledgee.. At the time a certificate of stock was wrongfully sub-pledged only a part of the stock was paid up, the corporation then holding the note of the stockholder for the residue payable on call, and the stockholder afterwards made a payment on the stock and gave a negotiable note for the residue. Held, that the sub-pledgee could only claim, as against the owner, the proportion of the stock paid up at the time ho received the certificate.</p>

<p>1. Winns. Devisavit rel non-. A general verdict and judgment in favor of the mil establishes it for all purposes — as to the realty as well as the personalty.</p> <p>2. ERROR. When not (/round of reversa!. An appellant having obtained judgment in his favor lo the full extent demanded, is not entitled to a reversal, although errors may have been committed against him.</p>

<p>EJROM WEAKLEY!</p> <p>Appeal in error from the Circuit Court of Weakley •county. C. Aden, J.</p>

<p>PROM SHERRY.</p> <p>Appeal from the Chancery Court at Memphis. W. W. McDowell, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. R. J. Morgan, Ch.</p>

<p>1. Corporation. Foreign. Stockholder*. Liability. The personal liability of the stockholders of a foreign corporation under the statute creating it can only ho enforced in another State against a resident stockholder ra comitate.</p> <p>2. Same. Same. Same. If the liability is in the nature of contract, and is not opposed to the legislation or public policy of the State in which it is sought to bo enforced, the courts will enforce it.</p> <p>3. Same. Stockholder*. Liability mil not be enforced. When. If the liability is penal in its nature, it will not be enforced outside of the State creating it.</p> <p>4. Same. Same. Same. A liability of a stockholder made dependent upon the contingency of the president and a majority of the directors of a corporation failing to make a certificate of the payment of the capital stock, the capital stock having been actually paid within the time prescribed by the statute, is, in its nature, highly penal.</p> <p>5. Same. Storlchddei’x. Liability. Where the general statute of the State of Kentucky, authorizing the organization of certain corporations, provided that the capital stock should be paid in, one-half within one year and the other half within two years, and further provided that, within thirty days after the payment of the last installment, the president and a majority of the directors should malte and sign a certificate stating- the amount of the capital stock so fixed and paid in, which shall he filed and recorded in the clerk’s-otiioe wherein the certificate of incorporation had been tiled; and where the statute, by another section, made the stockholders individually liable, jointly and severally, for all debts due the laborers and servants for services, and to other creditors to an amount equal to the amount of stock held by them respectively at the times such debts were contracted, after the recovery of judgment against the corporation and return of an execution unsatisfied, with a proviso that after the full payment of the capital stock and the certificate thereof, the liability of the stockholder, “as provided in this section,” shall cease; it was held— 1. That the stockholders could not ho held individually liable on the debts due to laborers and servants or other creditors without a recovery against, the corporation on the debt and the return of an execution unsatisfied. 2. That the last clause of the second section cited applied to the debts due to laborers and servants as well as to the debts due to other creditors. 3. That tire liability of the stockholders ceased with the full payment of the capital stock and the certificate thereof. 4. That the continuance of the liability of the stockholders after the full payment of the capital stock, because of the failure of the president and a majority of the directors to make the certificate of payment, was penal in its character, and would not be enforced against resident stockholders in this State.</p>

<p>Action. Right of. Attorney. The right of action against an attorney for the value of funds paid to him in satisfaction of a judgment which he had no authority to receive, arises as soon as the payment is made.</p>

<p>VOLUNTARY CONVEYANCE. Prior indebtedness. A husband collected certain notes payable to himself hut owned by a third person, and subsequently conveyed his entire estate, consisting of land, to his wife by deed of gift, after which judgments were recovered before a justice by the holder against the makers of the notes, which were stayed by the husband, who promised at the time, in the presence of creditor and debtors, to pay the money to the creditor. Held, that the land might be subjected to the satisfaction of the debt.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby - county. C. W. Heisicell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heisjeell, J. ■</p>

<p>ASSIGNOR, and ASSIGNEE. In a contest between the assignees of a claim allowed against a decedent’s estate in an insolvent suit, and a creditor of the assignor, the assignees will have the better right, if before the commencement of the creditor’s suit the personal assets of the insolvent estate have been exhausted and the funds for the satisfaction of the claim are the proceeds of realty, and the assignments were filed in the insolvent cause and entered on the minutes, and, a fortiori, if the entry bo by consent of parties and contain a formal stop order, although the personal representative of the estate have no personal notice of the assignments until after the service of the creditor’s bill upon him.</p>

<p>Supersedeas. Motion to discharge. A motion will not lie to discharge a supersedeas granted by one of the judges of this court, under the Code, sec. 3173, superseding- the execution of a judgment brought up by a writ of error, where the only ground for the motion is that the judgment below was correct.</p>

<p>SURETY. Release. If a creditor files his claim in an insolvent proceeding, being a judgment at law, and it is reported in liis favor without interest, no exception being taken, and the claim was allowed by the court and paid in full, the estate turning out solvent and leaving a surplus for distribution, the creditor cannot afterwards collect the interest or balance of the debt from a surety, the sum allowed and collected being received from the estate of the principal debtor.</p>

<p>Appeae. Overruling demurrer. Where there are several defendants with different rights, yet all interested in the same questions, it is error in. the chancellor to grant an appeal to one defendant on overruling his demurrer, and the ajipeal will be dismissed.</p>

<p>PROM HENRY.</p> <p>Appeal from the Chancery Court at Paris. John. Somers, Ch.</p>

<p>EEOM OBION.</p> <p>Appeal in error from the Circuit Court of Obion county. J. R. Hawkins, J.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. R. J. Morgak, Ch.</p>

<p>CONTRACT. OonslrvHion. The executors oí two deceased partners agreed with the surviving- partner to take the assets and pay the debts, except. a certain sum to be paid by the surviving partner. They were all subsequently sued and held liable to the original holder of a debt which had in fact been paid out of the assets of the firm to an endorser, who had taken it up from the holder, by compelling him to take Confederate money for it. The surviving partner knew the manner in which the endorser had obtained the note, and had in fact aided him in forcing Confederate money on the holder. The executors did not know these facts, but believed the payment that had been made to the endorser to be valid. Held: 1. The executors were not bound under their agreement to pay the recovery in exoneration of the surviving partner. 2. But the debt not being provided for in the agreement, the partners should each pay one-third.</p>

<p>Cobosiob. Fees of. By whom payable. A coronor’s inquest is no part of a criminal prosecution, and the costs oí same are properly chargeable to the county and not to the State.</p>

<p>FROM HENRY.</p> <p>Appeal in error from the Circuit Court of Henry •county. C. Aden, J.</p>

<p>1. Cobporatiom', Fobeigh. Assets. Chancery court jurisdiction,. The assets in this State of a foreign corporation doing business in this State, become, from the date of its insolvency, a trust fund for the benefit of creditors, and the chancery court acquiring jurisdiction may administer the assets, and enjoin separate creditors from prosecuting independent suits against the trust property.</p> <p>2. Same. Same. Commissioners of freedniun haul;. The commissioners appointed under the act of Congress of the 20th of June, 1874, to take charge of the property and effects of the Freedman’s Saving and Trust Company, dispose thereof, and distribute the proceeds among the creditors pro rata, have such a title and interest in the property as •will entitle them to file a bill in equity to execute the trusf.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. J. O. Pierce, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. W. "W. McDowell, Ch.</p>

<p>EBOM WEAKLEY.</p> <p>Appeal from the Chancery Court at Dresden. Jxo. Somebs, Ch.</p>

<p>1. Executob. Inability for neglect in prosecution of smt. Executors are not required to do more than employ honest and capable attorneys, and having done this they are protected in pursuing their advice and trusting to their skill and capacity in attending to the suit.</p> <p>2. Same. Where a suit was brought eight months after the qualification of the executor, and the defendants become insolvent before final judgment, held, no laches.</p> <p>3. Question reserved. Whether executors are liable in a case showing inattention or negligence of their attorneys, and loss resulting therefrom to the estate.</p>

<p>FROM SHERRY.</p> <p>Appeal from the Chancery Court at Memphis. R. J. Morgan, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby county. L. B. Horrigan, J.</p>

<p>1. Constitutional Law. Merchants’ tax. Priailege. Under tie provisions of the Constitution of this State, the Legislature may classify merchants for purposes-of taxation, and tax each class at discretion, except that it cannot impose a merchant’s tax, usually denominated a license or privilege tax higher than the ad valorem tax on property on that portion of the merchant’s capital used in the purchase of merchandise sold by him to non-residents and sent beyond the State, but may say that the business of a wholesale liquor dealer shall be deemed a privilege, not to be exercised without a license, and the payment of a special tax, in addition to the other taxes imposed upon such dealer as a merchant.</p> <p>2. Merchants’ Tax. Privilege. If a merchant of one class, paying a tax as such, add to the occupation another though kindred business, which is additionally taxed, his license as a merchant will not exempt him from the payment of the additional tax.</p> <p>3. Same. Merchant who sells liquors. A general grocery merchant, who keeps spirituous liquors as a part of his stock which he sells at wholesale, is liable to pay, under the revenue act of 1881, the privilege tax in gross imposed on wholesale liquor dealers, in addition to the tax on other merchants.</p> <p>4. Same. License. Pot a contract. A merchant’s license under our system is not a contract, and the State may change the rate of taxation pending the period for which it is issued, and the merchant must pay taxes according to the rate fixed by law for any given time.</p>

<p>Supreme Court Practice. Witt not suspend the execution of a decree. When. This court will not, upon application of the debtor, suspend the execution of a decree of foreclosure until the determination of another case upon the docket but not within the call of the term, because it involves a claim on the same property, which, if sustained, will be a superior lien to the trust deed foreclosed.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>1. Railroads. Suit for damage s. Burden of proof. Where, on a trial of an action against a railroad company for killing the plaintiff’s intestate, a boy about eight years of age, the testimony tended to show that the boy was trying to obtain-a ride on the train by catching the bannister of one of the cars, and lost his life by swinging between the platforms of two of the ears, losing his hold and falling across the track, it was not error to refuse the following charge: “If the jury believe from the evidence that the intestate was run over and killed by a train of cars on the defendant’s railroad, then they will find for plaintiff, unless the defendant has shown by satisfactory affirmative proof that neither it or its agents or employees were at fault, or were negligent in causing the death.”</p> <p>2. Same. Qne.ro, whether the law. imposes upon a railroad company the duty of having a brakesman on the platform of the cars, as the train approaches a depot in a city, to keep off trespassing children, or save them from accident if they attempt to get on.</p> <p>3. Charge op Court. Instructions asked must be, strictly correct. If special instructions be asked upon a matter embraced in the charge, the counsel must see that the instructions are strictly correct.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>Justice’s Jurisdiction. Notes. Bills of exchange. A justice’s judgment, rendered on a warrant in a plea of debt due by note and bill of exchange under $1,000, for a larger sum than the limit of jurisdiction on bills of exchange, cannot be sustained, and should be quashed upon certiorari.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>Leasehold Interest. Registration. An execution purchaser of a leasehold interest must take, if at all subject to the conditions of the lease, whether the same was registered or not. He cannot repudiate his purchase of the lease and claim the improvements as personal property with a right to remove them, contrary to the terms of the lease, upon the ground that it was not registered, and this notwithstanding, in the absence of express stipulation, the improvements might not be regarded as fixtures. But he may disclaim all interest under his purchase and avoid further liability on the covenants of the lease.</p>

<p>HROM GIBSON.</p> <p>Appeal in error from the Law Court at Humboldt. J. T. Caethel, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. W. W. McDowell, Ch.</p>

<p>FROM TIPTON.</p> <p>Appeal in error from the Circuit Court of Tipton county. T. J. Flippin, J.</p>

<p>FROM M’NAIRY.</p> <p>Appeal from the Chancery Court at Purely. G. H. NixoN, Ch.</p>

<p>Suretyship. Liability on cost bond. A surety on a cost bond, where there are several plaintiffs, is liable, notwithstanding the suit has been dismissed by one of the plaintiffs, the undertaking being joint and several for both principals.</p>

<p>Orimustau Law. Libel. Indictment. An indictment which charges the matter of the libel to be a letter which is set out in full in the indiotment, with the prefatory statement, “ which said libel is in substance as follows, to-wit,” is sufficient.</p>

<p>PROM WEAKLEY.</p> <p>Appeal in error from the Circuit Court of Weakley county. Jo. R. Hawkins, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. L. B. Horrigan, J.</p>

<p>Removal oi’Causes to U. S. Courts. Receiver. Bond. Security. AMU rvas filed in the chancery court to remove cloud from title. Respondents removed cause into U. S. circuit court and had a receiver appointed, who gave bond. Cause was remanded to State court for want of jurisdiction. Held, the bond could not he the basis of a decree in the chancery court. The bond was taken by a court having no power, control or rightful authority over the cause, and the sureties cannot be held liable.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the - Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>Chancery Pieadings AND PRACTICE. Bill to set aside fraudulent conveyance. Lien from filing bill. Attachment. A creditor filing a bill under sec. 4288 et seq. of the Code, in which the property is described which he seeks to subject to his debt, has a prior right to the satisfaction of his debt to a creditor who afterwards files a bill and has an attachment issued and levied upon the property. A lien is acquired from the filing of the bill, and the same is good without an attachment, not only against the fraudulent vendor and vendee, but against creditors.</p>

<p>'County. When not liable for building bridges. Persons who build or repair a bridge over a creek on a public road without an order from the county court, but simply do the work upon advice of a justice of the county, can have no remedy against the county for building or repairing the same.</p>

<p>Judsment. Lien. Levy. A judgment which is superseded within twelve months after rendition, is a lien upon the debtor’s land, and the lien will be continued for one year after the discharge of the supersedeas, provided the creditor shall issue execution and sell within that time. This lien is continued although no actual levy was made prior to the granting of the writ of error and supersedeas.</p>

<p>Pahtxbksuip. Firm asuela. Subrogation. Johnson and Bisk were partners. Johnson sold to Bisk his interest. By the agreement of dissolution and sale, Bisk agreed to assume all the liabilities of the firm, and gives a lien on all the partnership effects to secure Johnson in the purchase money and to indemnify him against creditors of the firm. Johnson conveys to an individual creditor “all his interest which may ho coming to him from said firm.” The partners becoming insolvent, the creditors of the firm file this bill. Held: The con-vevance by Johnson was fraudulent in law. The partnership prop-ertjr being liable for partnership debts, by the dissolution and terms of sale and the sale by one partner to the other, kept the firm property impounded with its liability to firm debts. The creditors, by subrogation, are entitled to the lien given to Johnson by the agreement of sale.</p>

<p>AdmikistRATion. Foreign and domestic. Rights as to negotiable paper. Negotiable notes are bona, notabilia in the jurisdiction of the testator’s domicile, when left there at the time of his death, and administration granted in this State, where the debtor resides, will not draw to it the title to such negotiable notes left by a foreign testator, without actual, possession.</p>

<p>EBOM SHELBY.</p> <p>Appeal in error from tbe. Circuit Court of .Shelby county. J. O. Pieeoe, J.</p>

<p>GUARDIAN ad Lieem. Compensation. Land should he rented and fee pa/id out of rent. While a guardian ad litem is entitled to compensation for services and have a lien therefor on property protected by his services, real or personal, the court, in all cases where it can be done, should preserve the corpus of the estate, if realty, and should have it rented out, and out of the rent pay the fee.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>REDEMPTION. Go-tenants. Sals of land. Innocent purchasers. Estoppel. If an heir redeems land sold for debt of ancestor, lie is presumed to liave redeemed for the benefit of all the heirs, and if ho wrongfully sells the same to an innocent purchaser, whereby the land is lost to them, he will be compelled in equity to account. -But the other heirs, by clear and unequivocal acts, may estop themselves from asserting this equity, as by consent, by refusing to join in the redemption, or advising the heir who redeemed, to do so in his own name and for his own benefit.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>1. Cototty Courts. School tax. The county courts, under the act of March 22,1877, have no power to levy a school tax higher than the State tax.</p> <p>2. Same. Same. When levied. The term of the court when levied, does not affect the validity of the tax.</p> <p>3. Same. Same. Amount levied. The fact that a larger sum was levied than was lawful, does not make the entire levy unlawful, but only to the extent of the illegal exaction.</p> <p>4. Tases. Tax books. Tax books are process equivalent to an execution in the hands of an officer, and a'payment under protest entitles the party to sue for so much as is illegal.</p>

<p>EJROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heisicell, J.</p>

<p>Warranty of Title. Vendor. Vendee. Judgment. In action by a ven-dee of personal property against bis vendor upon tlie implied warranty of title, a judgment for a recovery of the property in a suit brought by a third party against the vendee, of which the vendor had no notice, is not prima faeie evidence of the vendor’s want of title, so as to'throw the onus ux>on him of proving his title.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. R. J. MORGAN, Ch.</p>

<p>Jtjd&ments. Sale of land. Application of proceeds. A debtor owning various pieces of land, subject to tbe lien of several judgments, conveys part by deed duly registered. Subsequently other judgments are obtained against him. All the judgments are then transferred to the same person, and by process thereon all the lands are levied upon. At the sale, the uneomeyed lands bring a sum sufficient to satisfy all the “ senior judgments,” but not sufficient to satisfy all. By the direction of the creditor, part of the money is applied to the ltjunior judgments,” leaving an unsatisfied balance on the “ senior judgments,” • for which the creditor was proceeding to sell the land that had been conveyed. Held, that the purchaser of the land was entitled to a perpetual injunction.</p>

<p>1. Ceimiítai, Law. False pretense. To make a case under our statute, it must appear that the owner intended to part with the title to the property; if he intended to part only with possession, it might he larceny, hut not a case under the statute for obtaining goods under false pretense.</p> <p>2. Same. The false pretense must he as to an existing fact, not a mere promise to do something in the future.</p>

<p>1. "Wills. Construction. The testator devised to his soil certain lands in fee, and afterwards added a codicil, directing that all property previously devised to his son “ be vested in A. as trustee, for the use and benefit of my son, and no part of the same is to be subject to execution or other legal process for any debt or liability he may have contracted or may hereafter contract, nor is he to sell the same or any part thereof, but may use the rents and profits for his support and that of my wife, but he shall have the right to dispose of the same by last will and testament.” 1MU: 1. The devise created a simple and not an active trust. 2. The son took an absolute fee. 3. Sec. 4283 of the Code does not apply to such a case. Land in which defendant owns the entire legal estate in fee, is not “ held in trust for him,” though the origin of his estate may have been a devise or conveyance to one designated as a trustee.</p> <p>2. CHANCERY Jurisdiction. Construction. Sec. 4283 (act of 1832) is not a restrictive but an enabling statute. It does not restrict the inherent jurisdiction of the chancery courts to subject equitable estates to the payment of debts, but widens that jurisdiction so as to include the power to subject such stocks and choses in action as could not be reached by execution at law,do payment of the owner’s debts. The exception must be construed as a limitation upon the statutory jurisdiction created by that act, and not as restricting the inherent jurisdiction of courts of chancery.</p>

<p>1. MastbR and Servant. Tile obligations existing between master and servant do not exist between employer and contractor. An employer is not liable to others for injuries resulting from the negligence of a contractor, although the employer may have known that the contractor was of bad character.</p> <p>2. Same. Whether a person in the performance of work for another is a servant or contractor, depends upon whether he represents the will of his principal in the management and details of the work.</p> <p>3. Same. A master is not liable to one servant for the negligence or want of skill of a fellow-servant, unless there was a want of due care in selecting the fellow-servant, or unless the master retained him in his employment after knowledge of his careless habits or want of skill.</p> <p>4. Same. The rule is the same, although the negligence or want of skill of the fellow-servant relates to the ordinary repair of the master’s machinery, by which the plaintiff was injured.</p>

<p>Surety. Notice of motion. A surety on the prosecution bond in the chancery court against whom judgment is asked in this court at any time after the final judgment, is entitled to notice of the application, which may be personal or by publication as in case of revivor.</p>

<p>CEUirNAl/ Lmv. Private way. Registration laws. A deed by one landowner to an adjoining landowner granting- a private right of way, is within the registration laws, and without registration is void as against a bona fide purchaser from the grantor without notice.</p>

<p>1. Raii/roads. Culverts. Overflow. It is the duty of the railroad companies to provide by culverts or other means for the safe passage of accumulated surface water, and they are liable in damages for injuries to adjacent lands by overflow or back-water, caused by their failure or neglect to perform this duty.</p> <p>2. Same. Same. Sonne. They must provide against the recurrence of unusual and extraordinary accumulations which have once happened, and are conclusively presumed to know the habits of streams adjacent to the track.</p> <p>3. Same. Same. Right of way. The right of way to the land upon which the road is constructed, together with a hundred feet on each side of the centre of said road, endows it with no rights beyond those expressed. All lands are of necessity burthened with the servitude of receiving and discharging all water which flows down to them from lands on a higher level.</p> <p>4. Same. Same. Compensation. Possible future injuries from accumulated surface water, caused by the erection of the road-bed and track, was not a part of the incidental loss and damage estimated in fixing compensation for granting the right of way. The statutory compensation does not extend to damage or injury not authorized by the charter, such as injuries resulting from carelessness, negligence or willful trespass.</p> <p>5. Same. Same. Time. That the plaintiff was not owner of land injured when road was built, is not material. Each overflow caused by the negligence, carelessness or want of skill of the defendant or its agents is an independent wrong, and a cause of action for the damage resulting to the crops or other property of the rightful possessor of land overflowed.</p>

<p>1. Fraud. Statute of. A contract is not within the provisions of the Code, sec. 1758, sub-sec. 5, merely because it may continue longer than one year from its date — as, for instance, a contract to continue during the time the plaintiff may remain disabled on account of certain existing injuries.</p> <p>2. PLEADING. Contract. Breach of. The same certainty is not required in assigning breach of contract as in setting forth its terms. A substantial averment of breach is sufficient.</p> <p>8. Contract. Breach. In an action upon a contract of employment, in which the plaintiff avers he has been wrongfully dismissed, allegation or proof of a formal dismissal is not necessary; a denial and repudiation of the obligation of the contract is sufficient.</p> <p>4. Same. In such cases the plaintiff may recover full damages for the entire breach, and cannot bring separate suits for the wages that would have fallen due had the contract continued.</p> <p>5. Damages. Side. In such case the rule oí damages is what would have come to the plaintiff had the contract continued, less whatever he might earn in other employment by reasonable diligence, and may be computed in reference to events to happen after action brought. The difficulty of ascertaining the damages by reason of the uncertain and contingent events upon which they depend, as the duration of the plaintiff’s life, is no objection to the action.</p>

<p>MOTION.</p> <p>District Attorney-General moved the court to allow fee in case of nolle prosequi.</p>

<p>EB.OM KNOX.</p> <p>Appeal in error from the Criminal Court of Knox county. M. L. Hall, J.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. W. B. Staley, Ch.</p>

<p>FROM KNOX.</p> <p>Appeal from tbe Chancery Court at Knoxville. W. B. Staley, Ch.</p>

<p>Fraudulent Conveyance. Creditors of vendor and vendee. Where a fund arising from property fraudulently assigned has been brought into court at the instance of creditors of the vendor, creditors of the fraudulent vendee will not be permitted to have satisfaction of their claims until all the creditors of the vendor who have come in (although after the creditors of the fraudulent vendee) are fully satisfied.</p>

FROM GREENE. Motion. The attorney-general refused to allow sheriff’s fees for summoning venire, and submitted the question to the court.

<p>1. Municipal Cobpobatioets. Powers. Under an express power to impose forfeitures, a municipal corporation may, by ordinance, take up and impound the stock of a non-resident of the corporation running at large in its streets, and, upon five days’ notice by publication, sell the same to pay the fees of taking up, impounding and keeping.</p> <p>2. Same. Ordinance. Intentional violation. Where, in such a case, the charter of the corporation provided that its ordinances should not be obligatory on the persons and property of non-residents of the municipality, being citizens of the State, unless in case of intentional violation, the stock of such non-resident may be forfeited when he has knowledge of the ordinance, and knows or has good reason to believe that his stock, when turned loose on his premises, would go into the city, without showing that he had the specific intent that they should go.</p>

<p>FROM M’MINN.</p> <p>Appeal from the Chancery Court at Athens. W. M. BRADFORD, Ch.</p>

<p>EROM KNOX.</p> <p>Appeal in error from the Chancery Court at Knoxville. W. B. Staley, Ch.</p>

<p>PROM MEIGS.</p> <p>Appeal from the Chancery Court. W. M. Brad-pord, Ch.</p>

<p>1. Bills and Notes. Failure of consideration. Failure of consideration subsequent to tbe transfer of a negotiable note, made before its maturity and 'without notice, will not affect an innocent holder.</p> <p>2. Same. Transfer of negotiable note. In the absence of proof, the law will presume a negotiable note transferred before maturity.</p>

<p>EJEtOM IvNOX.</p> <p>Appeal from the Chancery Court at Knoxville. W. B. Staley, Ch.</p>

<p>ChaNcbby Pleading and Practice. Administration. Sale of land to pay debts. Although upon a hill filed to sell realty lor the payment of the debts of an estate, a reference to ascertain, and a report of debts and assets may generally be proper, and may be essential where there has been no final settlement of the administration, or where the testimony is conflicting or the facts complicated, their omission would not be reversible error if the record shows that they would be a mere form, and a useless expense, — as where there is only one debt, and a final settlement of the administration has been had in the county court, which is shown to be correct and is unimpeached, and the chancellor finds that the debt is valid, and that the personal assets have been exhausted in due course of administration.</p>

<p>CRIMINAL Law. Disturbing public worship. An indictment under the Code, sec. 4854, is good which charges the defendant, in the words of’ the statute, with exposing to sale, and selling “ provisions and other articles of traffic,” without either specifying the articles, or charging that the act was done in such manner as to disturb the worshipping assembly.</p>

<p>EEOM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. "W. B. Staley, Ch.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. W. B. Staley, Ch.</p>

<p>EROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. D. C. Trewhitt, J.</p>

<p>FROM MEIGS.</p> <p>Appeal from the Chancery Court at Decatur. W. M. Bradford, Ch. '</p>

<p>EROM HAWKINS.</p> <p>Appeal in error from the Circuit Court of Hawkins county. . Newton Hackee, J.</p>

<p>Rahjroads. What will not exouse. Although a collision might he avoided hy a reversal of the engine, yet the engineer is not hound to reverse, if hy so doing the lives of persons on the train are endangered; hut the fact that a reversal would be injurious or hurtful to the machinery, is no excuse for a non-compliance with the statute.</p>

<p>1. CoNSTlTTjTlosrAl. Law. Bailroad assessment law. Void. The meaning of the Constitution, art. 2, secs. 28-9, is, that all property must be assessed upon the same principle; all assessments must he made by the same rule; the basis of valuation must be uniform, and all property assessed at all must be assessed at its real value. By the act of March 20, 1875, all the property of a railroad company, houses and lands, personalty and realty, track and rolling stock, goes into a general aggregate valuation, without any attempt to fix the value of each piece or species of property. This aggregate value is divided by the number of miles in the road, and the value per mile, thus obtained, is multiplied by the number of miles lying inside a county or municipal corporation, and this product is the amount subject to county or municipal taxation. By the uniform practice of this State, since the Constitution of 1834, the property of private citizens is assessed at so much for each article or species of property — personalty and realty are separately assessed. There must not be one rule for railroad companies and another for private citizens. The assessment of the property of both must be governed by the same principle. The act fixes an arbitrary standard of valuation for the property of railroad companies different from that by which the property of individuals is assessed. It practically prohibits counties and municipal corporations from taxing the real property of the company, lying inside their limits, at their actual value. This act is unconstitutional and void. Overruling L. & N. IÍ. B. Co. v. State, 8 Heis., 603.</p> <p>2. Same. Same. Exemptions. The act provides, “ from the aggregate value is to be deducted the real cash value of individual shares.” The constitutional mandate that “ all property shall be taxed,” prevents the Legislature from granting any exemption whatsoever, no matter what the consideration. The grant of the exemption is unconstitutional and void.</p>

<p>1. Wills. Widow. Dissent. It is no ground to enjoin the widow of a testator from contesting his will, that she has been induced by a purchaser of property under the will to take that course, where, although old and infirm, it is not alleged that she is incompetent to act for herself, and it appears to be to her interest to break the wall.</p> <p>2. Same. Same. Not estopped to contest. When. The election of a widow to take under her husband’s will does not estop her from afterwards contesting the will; nor will her presence at, and acquiescence in the sale of property under the will, when it is not averred that she was then aware of the facts on which she is making the contest, or that her conduct was intended to influence, or did influence the action of the executors; nor will the receipt by her from the executors of the greater part of her share under the will, the amount received not exceeding her distributive interest in the estate if the will be set aside.</p>

<p>PROM GREENE.</p> <p>Appeal from the Chancery Court at Greeneville. H. C. Smith, Ch.</p>

<p>1. Glekk: and Mastek. Negligence. Liable. A clerk and master is liable to heirs for loss occurring from talcing notes of insolvent persons for land sold for partition. That he did not know the parties upon the purchase notes were insolvent, is no excuse; it was his duty to inform himself.</p> <p>2. Same. .Fees. Where negligence of the clerk and master inflicts loss upon a party, he forfeits his fees as to him.</p>

<p>FROM JEFFERSON.</p> <p>Appeal in error from the Circuit Court of Jefferson county. J. G. Rose, J.</p>

<p>FROM LOUDON.</p> <p>Appeal in error from the Circuit Court of Loudon ■county. S. A. Rogers, J.</p>

<p>FROM BRADLEY.</p> <p>Appeal in error from the Circuit Court of Bradley county. D. C. Trewhitt, J.</p>

<p>Land. Partition. Consideration. A person holding possession and title to an undivided interest in land under an executed deed may have partition thereof, although the consideration of the deed may have been illegal because in contravention of public policy.</p>

<p>3. Chancery Pleadings and Practice. Plea in abatement. Appearance- and defense. Appearance and defense on the merits, by a defendant in chancery, after his plea in abatement, that the subpoena to answer had been executed upon him while serving as a juror, has been overruled as insufficient, waive the plea. If the defendant wishes to have the opinion of the supreme court on the sufficiency of such a plea, he must abide by it, and decline to plead over.</p> <p>2. Lease. Tenant. Improvements. A tenant cannot claim compensation for improvements made pending the lease, unless he have a contract with his landlord to that effect.</p> <p>3. Improvements. Penis. Under the Code, secs. 3259, 3261, which allows a bona fide occupant of land under color of title, compensation for improvements not exceeding the rents, in the absence of an independent equity controlling legal rights, only such improvements are allowed for as were made before the party had knowledge of the better title.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. W. B. Staley, Ch.</p>

<p>EROM MARION.</p> <p>Appeal in error from the Circuit Court of Marion county. D. C. Trewhitt, J.</p>

<p>PROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of HamiL-ton county. D. C. Trewhitt, J.</p>

<p>1. Sale oe Land under Execution. Notice. The notice of the time and place of sale to which the debtor in possession is entitled under the Code, see. 3042, to make an execution sale of land valid, must be of the particular sale, and its defects cannot be obviated or supplied by a notice of a previously advertised sale which did not take place.</p> <p>2. Same. Same. Sufficiency a question for the court, and not for the jury. It is a question for the court, and not for the jury, whether a particular notice contains all the requirements of the statute.</p>

<p>Guardian and Wabd. Assets from another State. Swreties on bond. Where a guardian was appointed in this State for an infant resident, whose whole estate consisted of a fund in the hands of a guardian in another State, and a bond was executed in about double the value of that fund, and the guardian, upon the faith of the appointment and bond, applied for and received the fund through the probate court of the other State, and returned it to the county court appointing him as constituting the estate of his ward, it was held that the sureties were liable for the fund, the presumption being that they joined in the bond with knowledge of the facts.</p>

<p>PROM KNOX.</p> <p>Appeal in error from the Criminal Court of Knox county. D. K. Young, J.</p>

<p>1. CRIMINAL Law. Incorporated institution. Selling liquors. To sustain a conviction for selling liquors within four miles of an incorporated institution of learning, the certificate of the secretary of State must have previously been registered in the office of the county register.</p> <p>2. Same. Publication. The publication of the list of incorporated companies with the acts of assembly is not in lieu of such registration, and is only prima facie evidence of incorporation.</p>

<p>FROM SEVIER.</p> <p>Appeal in error from tbe Circuit Court of Sevier county. J. G. Rose, J.</p>

<p>CkemiuaIi Law. Indictment. Larceny. An indictment, charging that the prisoner unlawfully and feloniously did steal, take and carry away certain goods with intent to deprive the owner thereof, is good, without alleging in addition that the goods were taken without permission of the owner.</p>

<p>Pleadings and Pbactice. Discontinuance. Variance. The discontinuance of an action as to one or more of several defendants, by the failure to continue the issuance of process from term to term until served upon them, does not operate, of itself, to discontinue the action as to other parties properly summoned, and if the plaintiff declare alone against the latter defendants it would be treated as an informal nolle prosequi, and the variance disregarded.</p>

<p>Deed. Mortgage. When. A debtor, with two mortgages on his land to different creditors, conveyed the land to the junior lien creditor, taking from him a written agreement to reconvey upon the payment of the entire lien debts in two years, and a lease of the land for those years at an annual rent of exactly the interest called for by those debts, the consideration recited in the absolute deed being about one-half of the mortgage indebtedness at the expiration of the two years, and a part of that debt, no credits being entered, receipts given, or securities surrendered at the time. Held, that the transaction constituted a mortgage, but a mortgage for the security of the entire lien debts.</p>

<p>PROM HAMILTON.</p> <p>Appeal from the Chancery Court at Chattanooga. W. M. BRADFORD, Ch.</p>

<p>EROM HAMILTON.</p> <p>Appeal .in error from the Circuit Court of Hamilton county. D. C. Trewhitt, J,</p>

<p>1. Mandamus. County judge. Abatement. Costs. In mandamus proceedings to compel a county judge to issue a warrant for the hill of costa of a witness, the object of the suit is to assert a right against the county, through its financial agent, and the expiration of the term of office of the defendant pending the proceedings will not abate the suit, and no revivor against the successors in office is necessary.</p> <p>2. County Judoe. Powers. Costs. The county judge has no authority to revise a bill of costs properly adjudged against the county, taxed, examined and certified according to law.</p>

<p>Oiianceby Pleadings and Practice. Attachment KU. Decree. Where the decrees and proceedings thereunder in an attachment suit have been set aside upon a bill filed for the purpose, charging fraud in the suing out of the attachment as well as irregularity in the proceedings, and the property attached has been restored by a decree which makes no reservation in favor of the attaching creditors, a bill will not lie by those creditors to take up the original attachment suit at some point in its progress, upon the theory that the proceedings up to that point were not expressly annulled by the decree:</p>

<p>Ictfakt. Next friend. Pauper oath. An infant cannot sue in forma pau-peris, nor by a next friend in forma pauperis, for a personal injury, either by the common law of this State, or under the Code, sec. 2804.</p>

<p>1. CHANCERY Pleadings and Practice. Attachment bill. Agreement for delay. If a creditor expressly agree, upon sufficient consideration, to take no stej) to collect his debt within a given time, he cannot maintain an attachment hill thereon filed within the time.</p> <p>2. Lease. Lien for payment of rent upon crop. Where, in a lease of land for two years at a stipulated rate for each year, a lien for the payment of the rent is given •' on the present year’s crop, and a lien on all the . crops grown on the place,” the rent of the first year, as well as of the second year, will be a lien on the second year’s crop, and may be enforced by attachment of the crop.</p> <p>3. Attachment. Grounds for. Allegation. A charge that a debtor hastily removed his live stock to another Stale for the purpose of hindering and delaying complainant in the collection of his debts, is not equivalent to the requirement of the statute that he has removed, or is removing himself or his property from the State.</p> <p>4. Chancery Pleadings and Practice. Belief under general prayer. A judgment creditor, who seeks primarily to set aside a trust assignment by his debtor as fraudulent, may, upon the general prayer for relief, have a foreclosure of the trust assignment so as to reach the surplus, if any, after the payment of the trust exjienses and debts.</p>

<p>FROM KNOX.</p> <p>Appeal in error from the Circuit Court of Knox county. A. S. Lodgers, J.</p>

<p>Stjatute op Limitations. Surety and principal. Voluntary conveyance ■■ Adverse possession. The right of action of a surety to set aside a voluntary conveyance of land by his principal, which has never been registered, commences when adverse possession is taken under the assurance of title purporting to convey an estate in fee, and will be-barred by seven years’ adverse possession.</p>

<p>1. Lien. Retained in face of note. When void and fraudulent. A lien on a stock oi goods retained on the face of the note given for the purchase money would he fraudulent and void, if the goods were sold to he retailed hy the vendee for his own benefit, and were so disposed of, and the same consequences would follow the failure to register such a lion, as against subsequent purchasers and creditors, as in the case of a formal mortgage.</p> <p>2. Trust Deed. Acceptance hy trustee. /The acceptance hy the trustee of a general assignment for the benefit of creditors, before the filing of a bill attacking the validity of the assignment, would enure to the benefit of such of the secured creditors as might within a reasonable time come in under the assignment, and give them a prior right over the attacking creditor, whose bill was filed in advance of their formal acceptance.</p> <p>3. Same. Presumption of acceptance. The presumption of the acceptance by the beneficiaries of a trust assignment in their favor, which the law implies when the conveyance is made with the formalities necessary to pass the title to the property, or perfect the trust, would perhaps be equally effective, and certainly if supplemented by actual acceptance in a reasonable time.</p> <p>4. CHANCERY Pdeadinos and Practice. Sill to set aside fraudulent conveyance. Attachment. Answer. Upon a bill filed by a creditor under the Code, sec. 4288, to set aside a fraudulent conveyance made by his debtor, the jurisdiction of the court does not dejiend upon the attachment of the property, and the averment of fraud may be denied by answer.</p>

<p>FROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. D. C. Trewhitt, J.</p>